Juvenile Law Section Seminar:

Two Topics: Immigration and

GALs Representing Adults

Professor Kevin L. Ruser, Civil Clinical Law Program

University of Nebraska College of Law

Michelle Paxton, Children's Justice Clinic

University of Nebraska College of Law

Mary “Peg” Stevens Carlson & Burnett, LLP

Friday, October 19, 2018

Embassy Suites Hotel – La Vista Conference Center

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Advocating for Immigrant Children in Juvenile Court

Undocumented Children in State Court ProceedingsNE lawmakers’ efforts to help these vulnerable children:“To assure the rights of all juveniles to care and protection and a safe and stable living environment and to the development of their capacities for a healthy personality, physical well-being and useful citizenship and to protect the public interest . . .” NEB. REV. STAT. § 43-246(1) (emphasis added)

“[If] the minor has become eligible for special immigrant juvenile status as defined in 8 U.S.C. 1101(a)(27)(J), the consulate will assist the department in obtaining the necessary documentation for completion of the application for special immigrant juvenile status.” NEB. REV. STAT. § 43-246(1) (emphasis added)

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Agenda

• Immigration Clinic and Children’s Justice Clinic

• Special Immigrant Juvenile Status (SIJS) Defined

• SIJS Process

• How to Advocate for Child Client

• Provides law students an intensive experience working on immigration cases on behalf of low-income clients in need of legal assistance.

• No strict financial guidelines for clients to meet but most are low income.

• Immigration Clinic provides 100% free legal services.

CHILDREN’S JUSTICE CLINIC

• Partnership between College and Law and the University of Nebraska Center on Children, Families, and the Law

• Law students serve as student guardians ad litem for abused or neglected children in Juvenile Court

• Provides training, reflective practice, and case consultation

IMMIGRATION CLINIC

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Big Ten Network

SPECIAL IMMIGRANT JUVENILE STATUS(SIJS)

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Special Immigrant Juvenile Status (SIJS)• Became law in 1990 and amended most recently

in 2008

• SIJS seeks to protect the vulnerable youth

• Protects abused, abandoned and/or neglected children involved in state court proceedings by allowing them apply for permanent resident status in the U.S.

• A parent whose child becomes an LPR via an approved SIJS petition can never receive any immigration benefit through the SIJS child

SIJS Statute• INA §101(a)(27)(J) establishes SIJS as a possible form

of immigration relief for a child: • (i) who has been declared dependent on a juvenile court .

. . in the United States . . . And whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment . . . ;

• (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence

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SIJS DefinitionsThe Trafficking Victims and Protection Reauthorization Act (TVPRA) signed by George W. Bush in 2008 clarified and expanded SIJS definitions:

• “Juvenile Court” A court located in the United States that has jurisdiction under State law to make judicial determinations about the custody and care of a juvenile. 8 CFR § 204.11(a).

• “Long term foster care” No necessity for child to be placed in foster care, but instead that a determination has been made by the state court that reunification with parent is not viable. Does not require termination of parental rights. 8 CFR § 204.11(a).

• “Child” An unmarried person under 21. 8 CFR § 1101(b)(1).

SIJS Eligibility• Under 21 years old

• Unmarried

• Present in the United States

• Subject of a Court Order finding the following before the child reaches the age of majority: Has been abused, abandoned and/or neglected by one or both parents

Reunification with one or both parents not presently viable

Return to country of last habitual residence not in best interest

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Examples of cases in which SIJS findings can be entered

• “Traditional” juvenile cases (including abuse/neglect [“3(a)”] or delinquency [“3(b)”] cases)

• Guardianship / Conservatorship

• Custody / Paternity

• Dissolution / Legal Separation

• Probate

• Adoption

• Domestic Violence Protection Order

SIJS PROCESS

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Overview of Process: Nebraska State Court

• Declares child dependent on the Court-or-

• Legally commits child to, or places child under the custody of, an agency, department, individual or entity-and

• Finds:– Reunification of child and parent(s) not viable due to

abuse, abandonment and/or neglect-and-

– It would not be child’s best interest to be returned to home country

Overview of Process:United States Citizenship and Immigration Service (USCIS)

• Child files SIJS Petition (I-360) requesting SIJS, attaching the state court order and other required information and documents

– -then, IF SIJS Petition is approved-

• Child files Application to become Lawful Permanent Resident (LPR, also known as “green card holder”) (I-485) and other required information, documents and application fees.

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Additional Safety Measures:

– Child undergoes a stringent screening procedure

– Factors may make child ineligible if they constitute a “ground of inadmissibility” and there are no exceptions or waivers available to the child under the law

– Child’s biometrics are taken

– Child must pass a medical exam

– Child can be interviewed by USCIS

SIJS blends federal law procedures with state law procedures

• Child cannot apply for SIJS unless he or she has the predicate State court order with the necessary findings

• State courts do not make any immigration decisions, but rather make factual findings concerning the best interest of the child

• A State court order simply allows the child to submit an application for SIJS, and if that application is granted, the child could apply for LPR status

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SIJS IN NEBRASKA AND OTHER JURISDICTIONS

Federal delegation to State courts

• “The federal government delegated [the] power to State juvenile courts for child welfare determinations regarding abuse, neglect, or abandonment, and a child’s best interest.” Simbaina v. Bunay, 109 A.3d 191 (Md. Ct. Spec. App. 2015)

• “The state court’s role in the [SIJS] process is not to determine worthy candidates for citizenship, but simply to identify abused, neglected, or abandoned alien children under its jurisdiction who cannot reunify with a parent or be safely returned to their home country.” Leslie H. v. Superior Court, 168 Cal. Rptr. 3d 729, 737 (Cal. Ct. App. 2014)

• A trial court adjudicating a proceeding where SIJS findings have been put at issue must, at a minimum, make findings relevant to SIJS eligibility. State v. Luis G., 17 Neb. App. 377 (2009) (reversed County Court which had vacated SIJS predicate findings)

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State Courts are not rendering immigration determinations

• The ultimate determination regarding the child’s immigration status “rests with the federal government.” Matter of Marcelina M-G v. Israel S., 112 A.D.3d 100, 109 (N.Y. App. Div. 2013)

• The Nebraska Supreme Court clarified that a state court’s findings regarding facts relevant to SIJS status eligibility “are a prerequisite to SIJ status, but they are not binding on federal authorities’ discretion whether to grant a petition for SIJ status.” State v. Erick M., 284 Neb. 340 (2012)(emphasis added)(focuses on “1 or both” language in the SIJS statute)

NEBRASKA AUTHORITY FOR SIJS FINDINGS

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Nebraska District Courts

• Nebraska district courts are courts of general jurisdiction, both at law and equity, and are not limited in the exercise of such jurisdiction to remedies. NEB. CONST. art. V, § 9; NEB. REV. STAT. § 24-302; Earle v. Earle, 27 Neb. 277, 43 N.W. 118 (Neb. 1889)

• District Courts “shall have jurisdiction to inquire into such matters, make such investigations, and render such judgement and make such orders, both temporary and final, as are appropriate concerning . . . the custody and support of minor children. NEB. REV. STAT. § 42-351

• The Parenting Act, allows courts to make specific findings regarding both the location the placement of the minor child, the “child’s safety, health, [and] stability” and requires a Court to make findings regarding “[c]redible evidence of abuse inflicted on any family or household member” and “[c]redible evidence of child abuse or neglect.” NEB. REV. STAT. § 43-2923

• In divorce cases, § 42-351(1) gives district courts jurisdiction to make predicate findings• UCCJEA § 43-1238• The district court has additionally been given the jurisdiction to make specific findings of fact

regarding the best interest of the minor children in a divorce proceeding or modification. Bartlett v. Bartlett, 193 Neb. 76, 225 N.W.2d 413 (Neb. 1975)

• District courts have jurisdiction to find whether or not it is in a child’s best interest to be placed in a foreign country. Daniels v. Maldonado-Morin, 288 Neb. 240, 847 N.W.2d 79 (Neb. Ct. App. 2014)

Nebraska County Courts

• The court may appoint as guardian any person whose appointment would be in the best interests of the minor. NEB. REV. STAT. § 30-2610

• Each county court shall have . . . Exclusive original jurisdiction in all matters relating to the guardianship of a person. NEB. REV. STAT. § 24-517(2)

• County courts have equity jurisdiction in all cases in which they are given exclusive original jurisdiction. Ptak v. Swanson, 271 Neb. 57, 709 N.W.2d 337 (2006).

• A court of this state has jurisdiction to make an initial custody determination . . . if this state is the home state of the child . . . and . . . evidence is available in this state concerning the child’s care, protection, training, and personal relationships. NEB. REV. STAT. § 43-1238

• The best interests of the children must always be considered in determining matters of child custody, and, where the parent is shown to be unfit or have forfeited his or her superior right to custody, the court may place the children in the custody of an unrelated third party. In re Guardianship of Heather L., 2004 Neb. App. LEXIS 254 (Neb. Ct. App. Sept. 28, 2004)

• Nebraska county courts have the authority to make specific findings of fact relevant to SIJ status eligibility under 8 U.S.C. § 1101(a)(27)(J). State v. Luis G., 17 Neb. App. 377, 764 N.W.2d 648 (Neb. 2009)

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How to Advocate• Guardian ad litem role

– Independent investigation include immigration status

– Seek court findings

– Seek consultation with Court’s assent

– Seek specific Court orders for child client

How to AdvocateCourt Orders

• Motion and Proposed Order for specific findings

GAL Recommendations

• The Nebraska Department of Health and Human Services shall verify minor child’s immigration status and provide information to all parties

• The Nebraska Department of Health and Human Services shall file or arrange for the filing of a petition for Special Immigration Juvenile Status on behalf of minor child.

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Advocating for Immigrant Children in Juvenile Court

Kevin Ruser

Immigration Clinic

kruser1@unl.edu

Questions?

Michelle Paxton

Children’s Justice Clinic

mpaxton@unl.edu

Advocating for Immigrant Children in Juvenile Court